JUSTICE JOURNAL The JUSTICE Journal aims to promote debate on topical issues relating to human rights and the rule of law. It focuses on JUSTICE’s core areas of expertise and concern: • human rights • criminal justice • equality • EU justice and home affairs • the rule of law • access to justice www.justice.org.uk JUSTICE – advancing access to justice, human rights and the rule of law JUSTICE is an independent law reform and human rights organisation. It works largely through policy- orientated research; interventions in court proceedings; education and training; briefings, lobbying and policy advice. It is the British section of the International Commission of Jurists (ICJ). The JUSTICE Journal editorial advisory board: Philip Havers QC, One Crown Office Row Barbara Hewson, Hardwicke Civil Professor Carol Harlow, London School of Economics Anthony Edwards, TV Edwards JUSTICE, 59 Carter Lane, London EC4V 5AQ Tel: +44 (0)20 7329 5100 Fax: +44 (0)20 7329 5055 E-mail: [email protected] www.justice.org.uk © JUSTICE 2006 ISSN 1743-2472 Designed by Adkins Design Printed by Hobbs the Printers Ltd, Southampton C o n t e n t s JUSTICE Journal ContentsTitle title Editorial DefendingAuthor thename children of the poor 4 Roger Smith Papers The LSE law department and Clifford Chance lecture series on the rule of law, organised in conjunction with JUSTICE Introduction: Human rights and the rule of law 7 Ross Cranston QC Government and the rule of law in the modern age 10 The Rt Hon Lord Goldsmith QC, HM Attorney General Changing the rules: the judiciary, human rights and the rule of law 22 Roger Smith Terrorism and the rule of law 35 Shami Chakrabarti Articles Of bricks and mortar: mutual recognition and mutual trust in EU criminal justice co-operation – the first experiences in the courts of England and Ireland 48 Maik Martin The definition of terrorism in UK law 62 Eric Metcalfe Book reviews Discrimination Law: Text, Cases and Materials (second edition) 85 Aileen McColgan The Impact of Human Rights Law on Armed Forces 86 Peter Rowe Battling Terrorism: Legal Perspectives on the Use of Force and the War on Terror 87 Jackson Nyamuya Maogoto French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France 89 Jacqueline Hodgson JUSTICE Briefings 1 November 2005 – 29 February 2006 92 Cumulative Index 2004-6 93 3 JUSTICE Journal E d i t o r i a l Editorial Defending the children of the poor ‘Social justice’ has become a very prevalent concept in political thinking to which it would appear that all three major political parties subscribe. JUSTICE has been a willing contributor to an initiative of the Smith Institute to evaluate the government’s perspective on criminal justice as seen within an overall commitment to social justice. This has led to the publication of a book, Social justice: criminal justice,1 to which Sally Ireland and Roger Smith made a contribution, ’Due process and social justice – time to re-examine the relationship’. The concept of social justice merits some examination. In his contribution to the book,2 John Denham presents as a symbol of criminal justice the statue on top of the Old Bailey – as featured in JUSTICE’s own logo. He characterises the figure as ‘blindfold, dispassionate, objective …’. He contrasts notions of the procedural fairness that it represents with substantive economic and social fairness. Interestingly, far below the statue and over the main entrance to the Old Bailey is a motto that combines the concepts of social and criminal justice rather well: ‘Defend the children of the poor and punish the wrongdoer’. In discussing the topic of social and criminal justice, we should concentrate on that strand of government policy which has been directed to defending, in the words of the Central Criminal Court, the children of the poor. We need to begin with recognition of the extent to which the government has implemented a range of initiatives – from prosecution policies to the drive against anti-social behaviour – that have been designed to target crimes that have been hidden precisely because they are directed against the children of the poor or, as we might say now, marginalised – racial and homophobic violence; threats and intimidation on housing estates. We should consider four questions. First, have we now reached a point where criminal justice might beneficially be removed from its place at the apex of febrile politics? A Parliamentary answer revealed that 404 new offences were created between May 1997 and April 2005.3 In the eight years between 1997 and the end of 2005, there have been 23 Acts of Parliament with Police, Crime, Criminal, Offence or Terrorism in their title. These contain a total of 2087 sections supplemented by 178 schedules. We have of course had to deal with terrorism but in fact, for all the controversy it attracts, it is not terrorism that is responsible for the massive rise in offences. We now have think tanks4 explicitly endorsing the notion of ‘symbolic legislation’, ie legislation whose main value is in the passage rather than the implementation. To 4 E d i t o r i a l JUSTICE Journal the extent that this contributes to the triumph of illusion over reality, this must be a very dangerous concept. Do we really need to keep pace with an average annual creation of 50 new offences, three Acts, 250 sections and 20 odd schedules? Second, do we need to reconsider the way that government is extending discretion at the expense of precision? We have ended the distinction between arrestable and non-arrestable offences, so that now a police officer has massively increased powers of arrest. Furthermore, the issue of discretion is effectively at the core of the debate about the proposed clause on glorification of terrorism. It is certainly at the heart of the concern about the misuse of anti-social behaviour orders and responsible for the occasional examples of utter absurdity that have surfaced. The difficulties that arise when public officials exercise power with little precision are well-known and are not confined to their operation in the field of public order or crime. In the early 1980s, the social security system was deliberately revamped to provide a legal basis for decisions that were hitherto taken on the basis of discretion, albeit limited by secret codes. This leads to a more general, third – and hardest – question. What is the weight to be given to the principles of due process in the fight against types of crime that are hard to address by traditional methods? What, in any given case, are the true demands of due process, rather than accreted historical practice? There is no easy answer to this, and the debate is at the core of the issues of anti-social behaviour and jury trial that we discussed in previous editions. The issue is really one of degree: how far can the criminal justice system take on the role of defending the children of the poor – in extreme form, a social or economic objective – and still maintain those qualities of blindness, dispassionateness and objectivity? We need to keep cross-checking progress against the obvious danger of letting justice’s blindfold slip: the loss of objectivity and the consequent failure of due process. We might remember the prejudice that gave rise to the celebrated miscarriages of justice of the 1990s or the biased implementation of the old ‘sus’ or suspected person laws. These were both immeasurably damaging to the kind of ‘tolerant, thriving and successful society’ that Lord Falconer argues in his contribution to the book5 is the ultimate objective of our criminal justice system. But the balance of discretion arises in many reforms that are still being considered. In January, the Prime Minister raised a situation that might bring some of these issues to a head.6 He posited the position of a person ‘with £10,000 on them in cash in the middle of the city at 2am’and expressed frustration that ‘to prove that ... [they] … got this money through specific acts of drug dealing may be too hard. You may know it. But, how do you prove it?’ He expressed frustration at the restrictions of due process. But we surely need to hesitate before replying that we need a solution such as some provision that simply deems cash to have come from illegal sources. Due process is guaranteed by most constitutional documents from the United States 5 JUSTICE Journal E d i t o r i a l constitution to Magna Carta to the European Convention on Human Rights for good reason. The danger of assumption is that it is another word for prejudice. Finally, we might ask if the combination of a frenetic political atmosphere and practical restrictions can lead to unexpected and contradictory results, with liberally intended reforms turning back on themselves. For example, we face two main policy failures over the use of prison. It remains overused - particularly for short offences - and, partly in consequence, is too punitive. The Home Secretary calls in his contribution for ‘a package of support and interventions’ for each prisoner. The latest annual report of the Chief Inspector of Prisons indicates some of the practical problems facing this ideal. She indicates quite precisely how ‘population pressures limit prisons’ so that ‘in nine out of the 18 local prisons we inspected, the figures recorded simply misrepresented real outcomes’. In Dorchester, for example, staff unaccountably doubled the number of hours that prisoners were out of their cells in their records, from 6.5 to 13, thereby somewhat changing the impression of the actual regime in the prison.